Carroll Contracting Co. v. Hill-O'Meara Construction Co.

CAULFIELD, J. (after stating the facts). — The defendant’s contention that the wall and embankment should have been removed by the plaintiff under its ^contract without extra charge does not meet with our [15] approval. . The specifications expressly provided that the entire site was to be excavated by the owner down to “within approximately six inches of the required depth for basement floor.” The “entire site” could not be “excavated by the owner” without the owner removing this wall and “bourne,” because they occupied a portion of the site and were elevated above the depth to which the owner was required to excavate. It is true that the specifications under the head of “Excavation” provided that “the old stone walls or other objects wherever interfering with the new work are to be removed,” but when the specifications are read and construed as a whole the part last above quoted could mean nothing more in any event than, that plaintiff should remove interfering walls and other objects which the owner was not obligated to remove. The plaintiff had every reason to expect, reading these specifications, that when it came to perform its contract it would find the “entire site” “excavated by the owner” down to within approximately six inches of the required depth. The specifications expressly so provide. Plaintiff’s work under the contract was to do only the excavating required after, not before, the owner had excavated to the depth mentioned. Any work that plaintiff was required to do to bring the excavating down to where the owner had agreed to bring it was outside of plaintiff’s contract. The removal of the wall and “bourne” was clearly of that sort. The defendant it seems, by a separate contract, had agreed with the owner to do the latter’s share of the excavating, and when it shifted part of that extra task to the plaintiff it became liable to compensate plaintiff additionally therefor. The judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.